Brexit Crisis will last Decades

Not serious! The European Commission have announced extra measures and emergency subsidies in the case of a No Deal Brexit scheduled for 31 October 2019.

But neither the EU, the Irish or the British government are taking seriously the date of 31 October as the definitive date of Leave. What do they know that they are not telling the public?

The evidence

Neither the EU or the Irish have a plan to put up border posts along he Irish / Northern Ireland border. This would be required if they took the ‘Irish Backstop‘ danger seriously. It is a complex border requiring much preparatory work. It is also politically sensitive with memories of the the IRA conflict. But this can’t be the whole story for doing absolutely nothing. What’s happening?

Some British may think that all will be over at 11 pm on 31 October. But in Brussels, the bureaucrats have read the treaty carefully. That is why we could be in for decades of Brexit crisis.

How many years will the Brexit crisis last? That is not clear. But don’t expect an exit on 1 November. The way Article 50 is written it could last several decades.

The key word ‘Constitutional’

The key word in Article 50, the Exit clause of the Lisbon Treaty on European Union is ‘constitutional‘.

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Article 50 paragraph 1.

But what is the constitutional position for Brexit in the United Kingdom? It does not have a written constitution. Even if it did, there might be a dispute about the government’s interpretation of a clause compared with an opposition party, a commercial organisation, a trade union or an individual who challenged this. That would take the matter to the Courts.

Constitutional disputes about Europe have taken a long time to resolve in Member States. Courts raised questions on the legitimacy of the Lisbon Treaty and whether Europe is democratic.

The German Constitutional Court judged that “It is first and foremost the national peoples of the Member States who, through their national parliaments, have to provide democratic legitimacy“

For the UK with no separate Constitutional Court and no written Constitution, the chances for a dispute are much wider. For the present UK, with unprecedented disputes in Parliament and in the country about Prime Minister’s conduct and allegations of lying to the public and Parliament, the question is even more open.

It is complicated further by the fragility of the government. At present Mr Johnson does not have a majority in Parliament. Normally he should resign on the basis of a vote of no confidence. But that is not the situation in UK now that the country under the Fixed Term Parliament Act.

Second problem. UK has a government that cannot resign. It needs a two-thirds majority vote against it to call a General Election. But the Opposition does not trust Mr Johnson and has refused this until it is sure that he will follow an Act that they are passing to rule out a No Deal Brexit.

The only other means to have an election is a vote of NO Confidence. But that requires the Government party to vote that they have not confidence in themselves!

Furthermore Mr Johnson has sacked a score of some of the most loyal Conservative MPs simply because they voted against his wishes on the government timetable. A severe penalty from a government itself composed of many MPs who voted against the previous Conservative government. Mr Johnson himself has voted against the previous government of Theresa May on the Withdrawal Treaty but hypocrisy does not seem to bother him. However, sacking 21 supporters when the government had only a majority of one vote, seems reckless beyond measure. It shatters the majority and embitters the party supporters around the country.

How will the Johnson Government get anything else through Parliament?

But that is not all.

Thirdly, the Courts. At present there are three Court cases dealing with the legality of Brexit. They attack the advice the government gave to Queen to prorogue Parliament, allegedly to cut back on democratic debate on a No Deal Brexit. These cases are likely to go to Appeal and even the Supreme Court.

Nor is that the end. If cases are open by the Scottish and Welsh governments against the central government on misuse of advice to the Queen to prorogue parliament, then there is likely to be further challenges on more substantial issues of the Constitution.

Fourthly Economic Cases. Any of these arriving at the Supreme Court would take far longer to deal with and require extensive research and therefore delays.

Billions of pounds and billions of euros are involved in the decision and repercussions of Brexit both in UK and on the Continent. The Government has already paid out millions in compensation for its ill-judged handling of the Dover-Calais fiasco. So challenges in UK Courts may continue.

Fifthly, the core issues are unsolved, and much more. There are two further levels of legal challenge.

For Brussels, the question must arise, about the legal competence of a beleaguered government, accused of misrepresentation and cheating in delivering a firm and reliable decision for Brexit. If Brussels recognized any action of the Johnson government it would likely bring in huge economic costs to those on the Continent. It is up to anyone inside the EU to challenge whether a fully constitutional governmental decision has been taken. If not, why did the Brussels machine recognize it?

That challenge could go to the European Court in Luxembourg and deny or delay London recognition of its decision to leave.

In UK many people doubt whether the legal basis for the 2016 referendum will stand up to the light of day. The British voter never agreed to the Lisbon Treaty and that is the basis of Article 50! The totally separate Euratom treaty, designed to stop Atomic War that the Government says UK must now leave, never came into the pre-referendum debate or any publication or statement of the government.

youtube.com/watch?v=3tcJKfuMYCk

Irish Backstop still needs a solution. So does the Customs Union and Euratom. Whatever happens to the Johnson government and its replacement, UK still needs to resolve the Irish Backstop and its relations with the Continent.

Robert Schuman designed Europe’s peace system based on a democratic Assembly and a Customs Union in a Community. Leaving these institutions is equivalent to rejecting the peace. A new war is something no one in Europe wants. Does the UK not want to have full democratic relations with the Continent? Leaving a Parliament means marching on the road to tyranny.

The core problem that needs to be resolved is Democracy in UK and in Europe.

Will the dispute last decades? It already has!

A quarter century already

Crises in Europe tend to last decades or more. The Brexit crisis started well before the 2016 Referendum. It was then just called the Democratic Deficit crisis. In the UK, Brexit crisis can be dated back to at least 1994 — a quarter of a century ago.

James Goldsmith, an Anglo-French businessman, founded the Referendum Party with this aim. It made a deal with other parties, especially the Conservatives, for elected parliamentarians to pledge themselves to demand a referendum. The only referendum on Europe had occurred two decades earlier in 1975.

Many in Britain thought the Brussels system was autocratic and needed urgent democratic reform or UK exit. It was high time another took place. Nothing happened for decades despite promises of both Conservatives and Labour parties and the formation of the United Kingdom Independence Part. UKIP was actually formed in 1991 and took over the mantle of a Referendum when the Referendum Party dissolved thinking its work was done.

Brexit has been a crisis, ringing alarm bells and firing democratic Very-light flares, for decades. Don’t be surprised if the present Brexit crisis lasts as long again.

Will the Faull, Weiler, Sarmiento Brexit Plan work? What will?

Three eminent, self-confessed Remainers have published a legal plan to avoid Prime Minister Johnson’s cliff-edge of No Deal on 31 October. Law Professors Joseph Weiler, NYU and lately of Florence EUI, Daniel Sarmiento of Complutense University of Madrid and Sir Jonathan Faull, formerly head of the European Commission Legal Service, published their plan called ‘An offer the UK and EU cannot refuse‘ on the constitutional law site, Verfassungsblog.

If adopted, they hoped it could avoid the cliff edge if the UK’s rejected the Irish Backstop and the EU refused to yield. The Irish Backstop is a guarantee that the UK will respect Customs Union law for trade flows until the British introduced some technological or legal alternatives that would ensure the Irish Peace was not threatened and no customs posts would be re-established.

The proposal included features to guarantee both the integrity and autonomy of the EU’s and UK’s respective customs and their regulatory territories. It aimed to do so without a Customs Union between the two parties or a hard border between Northern Ireland and the Republic.

How?

The core of the proposal was the mutual recognition of both legal systems in the courts of both Ireland and the UK. An Irish judge would make sure the animal, product or service followed UK law if the destination was UK. A UK judge would make sure goods destined for Ireland and the EU would follow EU Regulations. The Proposal evoked considerable resonance in several media, both positive and negative; many questions were asked to which they addressed in a FAQ.

Prof Weiler writes that both legal systems must be equal and there would be no ‘outsourcing’:

“The current Backstop as it stands would already rely extensively on the integrity of the UK legal system and UK officials to collect the Common External Tariff of the projected Customs Union and to ensure that UK manufactured goods comply with the EU regulatory standards to give but two of many examples.
Is this, then, not “outsourcing”? In some cases as part of the Backstop the Union has insisted on on-site inspection and supervision by Union officials. That is included in our alternative Proposal too, albeit, importantly, on a reciprocal basis. In effect our proposal introduces all the cooperation procedures introduced in the Backstop, but it adds further instruments, as well as domestic remedies, including criminal penalties, to ensure effective enforcement.

Furthermore, the proposal incorporates a dispute settlement mechanism based on the withdrawal agreement’s enforcement mechanisms. Overall, then, this can hardly be considered to be any more “outsourcing” of the customs union than the Backstop itself envisages – in fact it is less. And, not to be forgotten, the UK under the Proposal would be “outsourcing” control of the integrity of its customs and regulatory territory to the Republic.

What is sauce for the goose is sauce for the gander. It is somewhat perverse to characterize an arrangement based on reciprocal enforcement, joint inspections, close cooperation and mutual trust as being a form of unacceptable “outsourcing” to a third state. And if the premise of any agreement is that one cannot trust the other partner, the Backstop is doomed.”

Will it work? My answer is NO.

I base that on Schuman’s own words. It fails to understand the origin, purpose and future of the supranational system of democracy and law that Robert Schuman created with the founding fathers in the 1950s. That brought peace.

But the system was not completed democratically because of the antidemocratic opposition of Charles de Gaulle, an autocrat who seized power in France throughout the 1960s. Unfortunately afterwards instead of restoring the original Community system to its full glory, subsequent politicians showed themselves to be neo-Gaullists who preferred wheeler-dealing in closed Councils to transparent democracy and proper elections.

Why won’t the professors’ scheme work?

What may be sauce for the goose may be sauce for the gander but the judicial source of decision-making for the EU-27 goose is not the same as the source for an independent, post-Brexit UK gander or any other third State.
Gaullist smoke still blows over reality. You either have a fully working, democratic Community system with its law machinery fully integrated by the people's consent or you revert to War.

1. Complexity. Take the case of the 2013 horse-meat scandal when 70,000 horses in N Ireland went missing and ended up in lasagna and other food products. It was found that the ‘beef’ was not only horse and pig meat but also chicken feathers. (https://democracy.blogactiv.eu/2013/02/21/elysee2-horsemeat-fraud-and-de-gaulle%e2%80%99s-cuckoo/) The ‘meat’ travelled across the EU through possibly half a dozen countries from Romania, Luxembourg to UK (and other) dining tables.
What would have happened if UK and/or N Ireland were not members of the same legal system whether for quality control or ’severe criminal fines’?

2. Two different levels of legal order. The Community system is based on what Schuman called an independent international judiciary, a supranational Court.
National Courts are based on judicial principles of natural law (honest analysis, fairness etc) that should be universally recognized but also on determining the material interests of the parties. Interests are determined inside a national context. Interests differ across borders and among individuals of different backgrounds. Who owned the chicken feathers? Were they sold legally? How, where and when did the pig turn to beef?
National courts are competent in analysing and judging the interests within their domains. They are not generally recognized beyond their borders.
Mutual recognition and control would have to involve not only UK with Ireland but all the other EU Member States. At each stage it would have to be identified as being for ‘UK export’ or ‘EU export’ as various, multiple -origin ingredients made their way to their final designation of UK table-ready or EU.
This sort of multiple origin and value-added is likely to be more complicated for foods and its associated criminal activities than cars and machinery.

3. Backstop guards integrity. It is not a matter of the EU not trusting the Brits but guarding the integrity of its independent supranational judiciary.
The backstop is not a bargaining chip but a guarantee of the integrity of the whole legal order.

4. Undermining Europe’s purpose. Removing the backstop is even more dangerous than letting the integrity of the European legal order go down the plughole.
The backstop is the plug to retain Europeans’ pledge for No More War inside the same Community system.
The European system was set up to make war ’not only unthinkable but materially impossible’ (Schuman Declaration).
The EEC was designed to prevent Trade War turning to hot war, and Euratom was to prevent Atomic war by having community ownership of fissile materials (www.eurdemocracy.com ).
This is why the European Court is the final authority (Luxembourg for Community matters and Strasbourg for democratic Human Rights.)

5. Governments change laws and systems fail. Legal systems are also subject to deterioration and decay. In UK the parliamentary customs of Erskine May are changed and undermined within a span of months. Inevitably the legislative process too.
The first danger signal for Europeans is in Human Rights violation by government systems. When the national system is found wanting, there is a possibility of the Council of Europe suspending the Member State. Greece was suspended under the Colonels.
When the Greek legal order changed, mutuality was impossible. Recognition of the Human Rights Convention by autocrats meant nothing. (Politicians do cheat and lie!)
That is why mutual recognition of European and third State systems is not possible. It is incompatible with a single source European Legal Order.

The Schuman Solution.

The only proven way to ensure that both sides in a dispute are content with the outcome is to make sure that their rights are respected — starting with human rights.

What is obvious to most thinking citizens but is not blindingly obvious to politicians is that citizens’ human rights and fundamental freedoms have been totally ignored ever since the Maastricht Treaty. Politicians have changed the original Community treaties designed to stop war into a power grab often against the people’s will, public opinion and opposite to what to the people say in referendums.

When the British were asked to vote on Article 50 of the Lisbon Treaty on European Union, it was totally illegal. They had never agreed to the Lisbon Treaty. They had not agreed to the European Union in the first place. They had only agreed to the European Community by referendum in 1975.

The 1975 referendum is still the people’s voice on the matter. When in 2016 Britons voted to leave the “European Union” it means that for them the Treaty on European Union is dead! Europeans want to revert to the democratic European Community.

The French and Dutch voted in referendums against the articles that were latter incorporated in the Lisbon treaty.

And the British referendum on the Constitutional treaty, that had been set for the period after this, was withdrawn. Politicians said there was no chance of UK and many other countries agreeing to it. The Constitutional Treaty had to be withdrawn. But it wasn’t.

It was re-introduced as the Lisbon Treaty against the wishes of practically all Member States!

Europe’s new constitutional arrangement –that politicians acknowledge had no public support and would be rejected in a vote — was imposed by a cartel of political parties acting as autocrats. This is a POLITBURO system. It owes its heritage both to de Gaulle and the Soviet system!

What should be done? So first, Britons have to vote on whether they agree to the Lisbon Treaty before any action can be taken about withdrawal. Governments can’t use Article 50 if the Treaty is not authorised by referendums. Governments of all colours refused to recognize this elementary human right of the citizens to vote their assent or dissent. They need a referendum on the Lisbon Treaty. Other countries should vote on it too. Politicians refused them the chance.

Britons also need to have a referendum on withdrawal from the Euratom treaty. The British government says that UK is leaving Euratom. But the Government never announced that it was part of the 2016 referendum. No publication mentioned that it was under consideration. No minister said UK would withdraw from Euratom if citizens voted to leave the EU. And no ballot paper in the Referendum of June 2016 mentioned leaving Euratom.

If Europe is to have a realistic future, the citizens must have their rights respected and leaders should be replaced with honest ones.

BREXIT, Boris and Bluff on 1 November?

Will BREXIT happen?

Yesterday UK’s new Prime Minister, Boris Johnson, reaffirmed the date for leaving the “European Union” as 31 October. The next day the new European Commission will take office. Will UK still be a Member State?

He gave a very upbeat speech in the Commons about how UK was going to be Great Again and lead the world.

“By 2050 it is more than possible that the United Kingdom will be the greatest and most prosperous economy in Europe…”

The United Kingdom will stay united despite the different votes. “Our Constitutional settlement, our United Kingdom will be firm, will be secure. Our Union of nations beyond question. Our democracy robust.”

“…we must take some immediate steps. The first is to restore trust in our democracy and fulfil the repeated promises of Parliament to the people by coming out of the European Union – and doing so on 31 October. I and all ministers in this Government are committed to leaving on this date, whatever the circumstances. To do otherwise would cause a catastrophic loss of confidence in our political system. It will leave the British people wondering whether their politicians could ever be trusted again to follow a clear democratic instruction.”

“I do not accept the argument that says that these issues can only be solved by all or part of the UK remaining in the customs union or in the single market.”

“I believe that at this pivotal moment in our national story we are going to prove the doubters wrong again. Not just with positive thinking and a can-do attitude, important though they are. But with the help and the encouragement Government and a Cabinet that is bursting with ideas, ready to create change, determined to implement the policies we need to succeed as a nation. The greatest place to live.”

“I believe that if we bend our sinews to the task now, there is every chance that in 2050, when I fully intend to be around, though not necessarily in this job we will look back on this period, this extraordinary period, as the beginning of a new golden age for our United Kingdom.”

My question was: had he read my book, that I sent him when he was Foreign Secretary in September 2016? It has Churchill and Robert Schuman, the founder of European democracy on the cover. (Boris has written his own biography of Churchill as leader).

On the back cover the text starts with the phrase “A Golden Age could be ahead, not only for Europe but for the planet.” That is based on the premise that ethical democracies have the greatest means for growth and prosperity as well as social well-being.

A “Golden Age” will only occur when Europeans ban trade wars against themselves in a fully democratic Customs Union. That is what Schuman’s government proclaimed in 1948. In May 1950 he made WAR, “unthinkable and materially impossible“.

Secondly, President Trump famously advised Mrs May when PM that the best way forward was to “sue the EU” not get into endless negotiations. That is exactly what I say in chapter 3, written three years ago. Two strategies were presented: painful and fruitless negotiation or legal clarification first about political corruption and fraud that caused “Democratic Deficit and Denial“.

Painful and fruitless negotiation is a continuing fact. Legal action is inevitable. Justice demands it. Human Rights have been violated since the Maastricht Treaty.

The book is available free on the US site www.academia.edu in a shorter pdf version “Don’t Brexit, Fix it!”

Have the Prime Minister and US President read anything in the book? Who knows. But it is not likely the UK and other European politicians will pay any attention to it. They are the guilty ones! Past politicians were all responsible for acting as if European democracy can be made by a cabal plotting to stop the people’s voice in referendums being followed.

The treaties all made powerful changes on the Constitutions of European countries. The people must agree or reject them. All the changes, however, were made either WITHOUT the people’s consent or directly AGAINST the people’s voice.

When the people say NO, it should mean NO.

The only valid European referendum in the UK was the 1975 referendum when two-thirds of the electorate voted in favour of membership of the European Communities.

Mr Cameron’s 2016 referendum was a dishonest trick. He gave a ‘cast iron guarantee‘ of a referendum on the Lisbon Treaty itself. Then refused to do so.

The 2016 referendum was not not about accepting the Lisbon Treaty or not. It was about Article 50 of that Treaty! The people had NOT endorsed it! Everyone knew it would never be endorsed in a referendum. That Article and many others of the Lisbon Treaty had already been rejected by referendums in France and the Netherlands. European politicians told UK that the British people should not have a referendum on it.

Honesty is the only way to have peace in Europe. For Boris, he would have to pay attention to the several chapters about telling the truth and replacing Brussels secrecy with open politics. Robert Schuman, when a prisoner of the Nazis SS, refused to collaborate and tell a lie to save his life. The book also describes a Seven Day Mental Diet to free the mind of self-deception!

Boris is gung-ho for leaving on 31 October. Will it happen or will he be blocked in parliament? Will the cost to industry eventually tip a change? Will there be private legal action in the Courts?

Certainly the policy to change the “Irish Backstop” — equivalent to puncturing the legal integrity of the Customs Union and the Single Market — will not happen. It would require 27 States to deny the Rule of Law in European politics. That is delusion. But UK could stay within Customs Union of the European Community system and ditch the anti-democratic, corrupt additions of the “European Union”.

At the moment I see no evidence that the new UK Government have this intention. We will have to wait and see when reality strikes.